Event report: The private copying exception and the compensation of harm in a dematerialised environment

On the 16th of October the IPKat, between a warm waffle and a creamy chocolate, participated in the Auvibel conference, under the chairmanship of Professor Frank Gotzen,KU Leuven and with the collaboration of &DE BANDT Attorneys. The location was thestunning Palais des Académies in Brussels, located between the historical heart of the city and the modern, also enchanting, glossy and glassy heart of the European Union. The conference was bilingual, French - Dutch, and you will have to pardon this Kat for not catching all of the Dutch legalese: she tried her very best!The theme of the discussion set by Auvibel, the Belgian collective rights management company for the private copying of protected works, was “The private copying exception and the compensation of harm in a dematerialised environment: challenges and opportunities”. The lineup of speakers to the event featured law practitioners, University professors, representatives of the private sector and the Belgian Minister of Justice, Koen Geens. The afternoon talks were divided into five main topics, followed by Q&A and some very very tasty finger food.

The first topic was “Technological context, evolution and prospects” introduced by Professor B.

Beeckmans (Solvay Brussels School), Mr. H. Grondel (Productize), Mr. J. Theys (Agilytic) and Mr. Lambotte (Agoria). As the title suggests, the presenters discussed how technology has had an impact in our everyday life focussing on the aspect of media, content and the use thereof. The speakers started by describing the 6 D’s exponential impacting industries (digitalisation, deception, disruption, dematerialisation, demonetisation, democratisation), followed by a critical insight on how media is consumed today, analysing different attitudes towards the use of the digital content and the subsequent blurring between what is copying and what is not within the dematerialisation of content.

After this socio-economical insight, a juridical framework to the issue followed: “The general framework and the scope of the private copying exception”, explained with precision by Professor M.-C. Janssens (KU Leuven), Mr. F. de Visscher (UCL, Simont Braun) and Professor F. Brison (VUB, Hoyng Rokh Monegier). The speakers gave a legislative overview (European and Belgian) as well as an analysis of existing EU case law, the Belgian Bhaalu case, and a special focus on AG Spuznar’s opinion in VCAST, speculating on its possibles outcomes and impact.

Full panel

A little coffee, speculoos and chit-chat and we were all powered-up for the second half of the conference, which kicked-off with Mr. P. de Bandt (&DE BANDT), Professor V. Cassiers (UCL, Sybarius) and Mr. P. Callens (Eubelius) talking about “The concepts of ‘harm’ and ‘fair compensation’ in the light of the case law of the Court of Justice of the European Union”. With their presentations, they answered the questions “who is liable, how to collect the levy and for whom” (Nokia and Amazon cases) and discussed the type of levy in light of the jurisprudence (Hewlett-Packard and Padawan).

Next on the list were Professor L. Neels (KU Leuven, UA Antwerpen) and Mr. K. Volckaert (riverrun) on “A methodology of the levy of the fair compensation for private copying” discussing how the actual model of calculation based on physical copies is outdated and analysing the possible alternatives for the future, to achieve a balance of compensation of harm with user’s rights, their explanation based on a value chain model.

After a long day of meetings, Minister Koen Geens arrived and talked about the importance of this topic also at legislative level. This served to introduce the last topic of the day, “The organisation of the levy of the fair compensation for private copying”, which was discussed by Mr. F. Stroobant of Auvibel and Dr. T. Desmet (Profacts). They both analysed the current situation as regards levies and consumption of content with a focus on Auvibel’s figures, which show a decline in revenue. The conclusion was in sense of a needed reform of how levies are calculated.

Event report: The private copying exception and the compensation of harm in a dematerialised environment
Reviewed by Cecilia Sbrolli
on
Wednesday, November 15, 2017
Rating: 5

6 comments:

Anonymous
said...

As to the 6 D's (and what is copying and what is not), I am curious as to aspects of items "dematerialized" and whether or not "copying" matters.

After all, copyright protection only inures when something is "materialized," so the copying (or not; or even how any such is labeled) of something that does not carry copyright protection should be a non-issue, right?

"Next on the list were Professor L. Neels (KU Leuven, UA Antwerpen) and Mr. K. Volckaert (riverrun) on “A methodology of the levy of the fair compensation for private copying” discussing how the actual model of calculation based on physical copies is outdated and analysing the possible alternatives for the future, to achieve a balance of compensation of harm with user’s rights, their explanation based on a value chain model."

"Harm" is only legally recognizable where a right exists. If there is no "materializing," such that no actual copyright inures, then - by definition - there is no harm.

Of course, this legal view surely does not match with what those in the market will consider "harm," and will seek to bend the legal view to cover their respective business models.

One must be extremely cautious when drinking in whatever it is that interested parties in this area may be serving!

For example, the last paragraph and the shown decline in revenue may be not only quite natural, as people migrate away from "the physical," but actually may be artificially higher then normal BECAUSE of influence from those with existing business model interests.

Not being present, I am not in a position to challenge the conclusion reached, but would merely caution that any conclusion reached needs to consider what "dematerializing" really means from the legal perspective (that is, a LOSS of cognizable rights).

Did the panelists come to any conclusion on the meaning of harm in regard to the fair compensation?

What kind of levy-types were discussed based on Reprobel an Padawan? And what were the opinions on the liability to claim compensation from whom? It seems to me that the opinions about the requirements of the ECJ seem to differ drastically.

I would be very interested in learning a bit more on what was discussed at the conference. However if that is not possible because of language difficulties -- as implied in the article --, I can totally understand that. I did not go because I can speak neither Dutch nor French. But maybe someone could help out?

@Anonymous: Copyright is not limited to the protection of materialized copies, but affects immaterial forms as well, e.g. the communication to the public.

Even without materialized copy an infringement can occur. But because the use of a work went along with the permanent material copy -- digital or analogous -- for a long time, copyright systems still seem to be adjusted to this circumstances. Now that other forms of use become more common, the question arises how a legal system of compensation/renumeration may adapt to that. In my opinion the actual use is the relevant circumstance, for which the right holder should be compensated. Because it was -- and is -- difficult to measure this, the number of copies was an abstraction, which was somehow connected with the reception of the work. when the habits change, the legal concepts must adopt to that.

That is how I would understand the focus of the talks. What do you think about this?

I disagree. One needs a materialized copy to inure the right. Now, there may be other items (your performance rights angle), but that is not there if the initial right is not obtained. Else, it falls into some other category than copyright, eh?

1. Even if you do not produce a material copy at least in some member states. For example a jazz improvisation may be protected even if not recorded. The question how this is handled in practice is a different topic in my opinion.

2. Apart from that: most works which are consumed have been materialised, haven’t they? So the real question is how the practical forms of use change. Or how would you see that?